Early last month the Department of Justice filed a “Statement of Interest” in Migyanko v. Aimbridge Hospitality LLC¹ that should give pause to every business subject to Title III of the ADA; that is, every business. Two sentences from the Statement of Interest are of particular concern:
“The ADA Standards do not address every aspect of physical accessibility.”
and
“Of course, in the absence of specific requirements for bed height, hotels have some degree of flexibility in making reasonable modifications to provide usable beds for a person with a disability. This flexible standard is inherently fact-specific.”
To understand why these innocuous statements are of such concern requires a look at this case and the problems created when DOJ declares that something is discriminatory without defining what discrimination means.
Mr. Migyanko’s complaint is straightforward. The beds in the defendant hotel were too high for him to get into from his wheelchair. Because he was disabled, having an unusable bed was disability discrimination. The hotel’s response was equally straightforward. The ADA Standards for Accessible Design appear to have a comprehensive list of requirements for accessible hotel rooms and bed height is not among them. What the regulations do not require the hotel should not be required to do.
DOJ’s Statement of Interest correctly points out that every public accommodation has an obligation to make:
reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods and services to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods or services.
According to DOJ, the phrase “policies, practices or procedures” includes the physical characteristics of beds. As for the lack of regulations, DOJ points out that it thought about regulating bed height back when it issued the 2010 Standards but decided not to.
The problem with DOJ’s position is that bed is not a “policy, practice or procedure.” It is a physical part of a hotel’s inventory of hotel rooms like the night stand, television and Gideon Bible in the drawer by the bed. DOJ has long admitted that the ADA does not require that businesses modify their inventory to make it accessible or to provide accessible versions of the things they sell or rent. 28 CFR §36.307 states:
(a) This part does not require a public accommodation to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.
A hotel room is commonly known as part of a hotel’s “inventory” and DOJ, contradicting its own regulation, is demanding that hotels alter their inventory to include accessible or special goods in the form of lower beds.
Of course DOJ could have regulated bed heights in the 2010 Standards. It could have required that the hotel rooms required by regulation to have special accessibility features also have a bed of specified height. However, once DOJ declined to regulate beds they became nothing more than another accessible or special good that hotels are not required to stock any more than a bookstore is required to stock books in braille.
I’m sure DOJ will try to fit the height of a bed into the phrase “policies, practices or procedures” by saying that the choice of a bed is a practice or procedure. That rationale makes every aspect of physical accessibility subject to a claim of discrimination because everything a business does ultimately involves a choice of some kind. The ADA “modification” provision was clearly intended to apply to day-to-day operations, not choices about construction or inventory.
Equally disturbing is DOJ’s statement that “The ADA Standards do not address every aspect of physical accessibility” followed by the very clear suggestion that any unregulated aspect of physical accessibility can be litigated as a potential claim for modification. The ADA Standards do not address how stores and restaurants are lit. Can a person with a vision disability insist on brighter lights? The ADA Standards also omit sound proofing and sound reduction. Can a person with a hearing disability insist that noisy restaurants be made quieter, or that they be given the quietest table in the room? If those examples sound absurd, remember that DOJ also says that its standard for modifications is “inherently fact-specific.” That phrase, put in ordinary business terms, means “you won’t get out of the lawsuit until you’ve spent thousands of dollars in legal fees.”
This position also means that individuals with disabilities will have no certainty at all about what they will find when they rent a hotel room. Here’s what DOJ suggests:
For example, some hotels might be able to use a combination of lower profile mattresses, box springs, and bed frames to lower the beds permanently in some of their rooms. Or, some hotels could perhaps provide lower beds upon request in a room by using rollaway beds, removable bed frames, adjustable height bed frames, or bed frames on removable risers.
Modifications like providing rollaway beds guarantee an uncomfortable night’s sleep. With other solutions there is no certainty one way or the other. In fact, it isn’t clear just how low a bed should be. I found a publication suggesting between 17 and 24 inches(5) is accessible, and the internet generally seems to think that 25″ is ideal for those without disabilities. Is the extra inch the straw that broke the camel’s back on accessibility, or are we really only talking about really tall beds? Without regulations a disabled person who sees that a hotel has lower beds as an accessibility feature can’t tell just what that means or what kind of bed they will get.
What can hotels do? The Statement of Interest refuses to say whether any accessibility option for beds is guaranteed to be sufficient, but a logical extension of the minimum accessible room requirement suggests that lower beds (24″ or less) should be standard in accessible rooms. If only 5% of rooms must be accessible it would be hard to argue that more than 5% must have low mattresses, especially when most of the accessibility requirements relate to wheelchair users. Using the same mattress manufacturer will help ward off claims that the beds are not equally comfortable. And, of course, since bed height is now an accessibility feature website reservation systems must be updated to include a reference to the fact that low beds are available in accessible rooms.
That doesn’t mean you will be safe from lawsuits. We’ve already seen what happens when DOJ refuses to regulate but insists the ADA applies. The most recent data from Usablenet² show we are on track in 2021 for another 15% annual increase in lawsuits claiming that websites are not accessible. The ADA website legal industry has been driven from the beginning by DOJ’s refusal to regulate while it asserted the ADA applies to the Internet.³ There is already a very active parallel litigation industry suing hotels over information about accessible rooms, so it isn’t difficult to imagine lawsuits over hotel beds and amenities becoming a new way for plaintiffs’ attorneys to make money off the ADA.(4) DOJ regulations should be a safe harbor not just for the specific details of physical access in them but also for physical accessibility in general; otherwise DOJ’s job will have been delegated to the plaintiffs’ bar as self-appointed regulators and we will have every federal deciding just what an accessible bed is based on whatever experts happen to be hired by the parties. Litigation is expensive, inefficient, and ultimately ineffective when accessibility is not defined. Instead of filing Statements of Interest DOJ should do its job and issue regulations or, better, admit that physical accessibility as defined in the 2010 Standards is all the physical accessibility any business should be required to achieve.
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¹ The link to the document is here Statement of Interest
² See “2021 Midyear Report” which was kindly provided to me by Jason Taylor, Usablenet’s Chief Innovation Strategist.
³ Moreover, while the early lawsuits targeted larger companies, the Usablenet report shows a clear trend toward suing smaller and smaller businesses, where the impact of the lawsuit is likely to be far more serious. There is no real correlation between the size of a business and the cost of defending or settling an ADA website lawsuit. Joe’s Pizzaria will have to pay just as much as its multi-national competitor.
(4) I will just brag a bit to say I’ve been right about this before. In 2015, when only a few dozen ADA website cases had been filed I wrote “An ADA storm is brewing – web access litigation in 2016”
(5) The ADA National Network publishes a guide for accessible lodging. ADA For Lodging: Best Practices and Standards”
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